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Exhibit
10(bb)
Execution
Copy
SEVERANCE AND RELEASE
AGREEMENT
This Severance and Release
Agreement (the “ Agreement ”) is entered into
between Energy Future Holdings Corp., a Texas corporation (the
“ Company ”), and David P. Poole, an individual,
(“ Executive ”). Executive and the Company are
referred to in this Agreement as the “ Parties
.”
RECITALS
WHEREAS , Executive
previously notified the Company of Executive’s intention to
terminate his employment with the Company for Good Reason, as
defined in the employment agreement between Executive and the
Company dated May 1, 2004, as amended on September 28,
2007, October 4, 2007, and January 2, 2008 (“
Employment Agreement ”);
WHEREAS , the Company
has accepted Executive’s resignation for Good Reason, and has
agreed to permit Executive’s resignation for Good Reason to
be effective as of March 31, 2008; and
WHEREAS , the Company
and Executive desire to enter into this Agreement setting forth the
terms of Executive’s separation from the Company.
NOW, THEREFORE , in
consideration of the promises and mutual agreements in this
Agreement, and for other good and valuable consideration, the
receipt and legal sufficiency which are acknowledged, the Company
and Executive agree as follows:
ARTICLE 1
RESIGNATION AND
TERMINATION OF EMPLOYMENT
Effective at 12:01 a.m. on
March 31, 2008 (the “ Separation Date ”),
Executive’s employment with the Company ended, and he
resigned from all positions he held as an officer of the Company
and any entity that controls, is controlled by, or is under common
control with the Company (an “ Affiliate
”).
On or before the Separation
Date, Executive returned all property of the Company and its
Affiliates, including all written, printed or electronic
Confidential Information (as defined below), in his possession. If
Executive discovers, or comes into possession of, any other
Confidential Information after the Separation Date, he shall
promptly return it to the Company’s General
Counsel.
ARTICLE 2
SEVERANCE PAYMENT AND
BENEFITS
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a. |
Consistent with the Employment Agreement and the Additional
Payment Agreement between Executive and the Company dated
October 10, 2007 (“ Additional Payment Agreement
”), and in consideration for the promises contained in this
Agreement, the Company will provide Executive with the severance
payments and benefits described below: |
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(i) |
Accrued Obligations . A cash payment for: a) eleven
thousand eleven hundred eleven dollars and eleven cents
($11,111.11) for Executive’s base salary through the
Separation Date, to the extent it has not already been paid; b)
eighty thousand dollars and no cents ($80,000.00) for
Executive’s accrued and unused vacation days as of the
Separation Date, to the extent they remain unused and he has not
otherwise been paid for them; and c) any expense reimbursements to
which Executive is entitled through the Separation Date, to the
extent they have not already been paid. |
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(ii) |
Deferred Compensation . Any amounts in Executive’s
account under the Company’s Salary Deferral Program (“
SDP ”) shall become fully vested and shall be paid at
such time and in such form as otherwise payable under the terms of
the SDP. |
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(iii) |
COBRA . To the extent Executive elects to continue
medical benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“ COBRA ”), the
Company will offer Executive COBRA coverage for eighteen months,
subject to COBRA’s provisions. Executive’s required
contribution will be at employee rates. |
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(iv) |
Gross-up . Pursuant to Section 4.6 of the
Employment Agreement, Executive shall be entitled to gross-up
payments for any payment, distribution, or provision of a benefit
provided, or to be provided, by the Company or any of its
Affiliates pursuant to the Employment Agreement, the Additional
Payment Agreement, or this Agreement that is subject to an Excise
Tax (as defined in the Employment Agreement). |
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b. |
The Company
and Executive agree that the payments and benefits described in
Section 2.1.a. above shall be in lieu of any other separation,
severance incentive, or benefits offered under any plan, program,
or agreement (including the Employment Agreement) to which
Executive may have been, or to which Executive believes he may be,
entitled as a result of his employment with or separation from the
Company or any Affiliate, except for those specifically provided
for in the Additional Payment Agreement, which survives execution
of this Agreement, and Section 2.2 below. Any such payments
shall be less any applicable taxes and withholdings, deductions, or
obligations, including any
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amounts owed to the
Company or an Affiliate by Executive on any Company issued or
sponsored travel or credit cards or any other expenses or payments
for which the Company is entitled to be reimbursed by
Executive.
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a. |
It is agreed that, from and after the Separation Date,
Executive shall not be eligible to continue to participate in any
employee benefit plan, program, or policy sponsored by the Company
or any Affiliate, except for rights that have vested as of the
Separation Date or as specifically provided in this
Agreement. |
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b. |
Executive will be entitled to receive a distribution of, or
cause a direct rollover of any balances subject to direct rollover,
his vested awards or vested account balances under, and subject to
the provisions of, each of the governing plan documents of the
following employee benefit plans and other terms described in the
Employment Agreement: |
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(i) |
EFH Retirement Plan (Cash Balance formula) (with credit for two
(2) years of Accredited Service (as defined in the EFH
Retirement Plan) per each year of Executive’s employment for
purposes of all retirement benefits in accordance with
Section 3.5 of the Employment Agreement as if Executive had
continued in the employment of the Company through October 10,
2009); |
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(ii) |
EFH Supplemental Retirement Plan (“ SRP
”); |
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(iii) |
EFH Thrift Plan; and |
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(iv) |
EFH Health Care and Life Insurance Plan. |
ARTICLE 3
WAIVER AND
RELEASE
| 3.1 |
Release of Company by Executive |
Executive represents that he
has not filed any complaints of any kind whatsoever with any local,
state, federal, or governmental agency or court against the Company
based upon, or in any way related to, Executive’s employment
with the Company. Executive further represents that he understands
that payment of the severance payments and benefits as provided for
in Article 2 constitute a full and complete satisfaction of any
claims, asserted or unasserted, known or unknown, that Executive
has or may have against the Company or an Affiliate except as
provided below. In exchange for the payments to be made by the
Company and benefits to be received by Executive under this
Agreement, Executive individually and on behalf of
Executive’s spouse, heirs, successors, and assigns hereby
agrees not to sue or instigate any grievance, charge, claim,
action, or suit, at law or in equity, and unconditionally releases,
dismisses, and forever discharges the Company, including its
predecessors, successors, parents, subsidiaries, affiliated
corporations, limited liability companies and partnerships,
including (but not limited to) Energy Future Holdings Corp., Energy
Future Competitive Holdings Company,
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Luminant Energy Services Company,
Luminant Mining Services Company, Luminant Power Services Company,
EFH Corporate Services Company, TXU Retail Services Company, Texas
Competitive Electric Holdings Company LLC, TXU Energy Retail
Company LLC, Luminant Energy Company LLC, TXU Energy Solutions
Company LLC, Oncor Electric Delivery Holdings Company LLC, Oncor
Electric Delivery Company LLC, Luminant Generation Company LLC,
Generation MT Company LLC, Generation SVC Company, Luminant Mining
Company LLC, and all of their employee benefit plans, officers,
directors, fiduciaries, employees, assigns, representatives,
agents, and counsel (collectively the “ Released
Parties ”) from any and all claims, demands, liabilities,
obligations, agreements, damages, debts, and causes of action
arising out of, or in any way connected with, Executive’s
employment with or separation from the Company or any of the
Released Parties. This waiver and release includes, but is not
limited to, all claims and causes of action arising under or
related to Title VII of the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; the Civil Rights Act of 1866;
Section 1981 of Title 42 of the United States Code, as
amended; the Age Discrimination in Employment Act of 1967, as
amended; the Americans with Disabilities Act; the Employee
Retirement Income Security Act of 1974, as amended;
Section 211 of the Energy Reorganization Act; the
Sarbanes-Oxley Act of 2002; the Older Workers Benefit Protection
Act of 1990; the Worker Adjustment and Retraining Notification Act;
the Occupational Safety and Health Act, as amended; the Family and
Medical Leave Act; the Texas Labor Code, including (but not limited
to) Chapter 451; the Texas Commission on Human Rights Act; all
state and federal statutes and regulations; all oral or written
contract rights, including any rights under any Company incentive
plan, program, or labor agreement; and all claims arising under
common law including breach of contract, tort, or for personal
injury of any sort; SAVE and EXCEPT Executive does not release
Company from any liability for: (i) any claim for which
Executive is entitled to indemnification under the terms of any
contractual indemnity or the charter, articles, bylaws, or any
other organizational documents of the Company or any of its
Affiliates; (ii) any vested rights under any of the
Company’s employee benefit plans;
(iii) Executive’s rights under this Agreement, under the
Additional Payment Agreement and under Sections 4.6, 4.7, and 5.1
of the Employment Agreement that survive Executive’s
separation from employment; and (iv) Executive’s rights
under any directors and officers liability insurance policies that
provide coverage to Executive in his capacity as a former officer
of the Company or any of its Affiliates, and nothing in this
agreement is intended to or shall constitute a waiver of any such
insurance coverage available to Executive.
Executive understands that
this Waiver and Release precludes him from recovering any relief as
a result of any lawsuit, grievance, or claim brought on his behalf
and arising out of his employment or separation from employment
with the Company. However, nothing in this Waiver and Release
restricts Executive in any way from truthful communications with,
filing a charge or complaint with, or full cooperation in the
investigations of, any governmental body, entity, or agency on
matters within their jurisdictions or from cooperating with the
Company in any internal investigation.
| 3.2 |
Release of Executive by Company |
The Company, on behalf of
itself and its Affiliates, hereby releases, discharges and agrees
to indemnify and hold harmless Executive from any and all claims
and causes of action that it or they may have against Executive
arising out of his employment with, or separation
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from, the Company or any Affiliate. Such
release, discharge and indemnification does not include claims for
violation of any law, including any securities law or willful
misconduct (the Company acknowledges that it is not aware of any
such conduct as of the execution of this Agreement). Company
further acknowledges and agre
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